The Fifth Circuit has had a bad run lately, overturned by SCOTUS on the issue of standing three of the last four years, and twice this term. The Fifth Circuit...
The remarkable ruling by the 5th U.S. Circuit Court of Appeals shows the impact of the Supreme Court’s current focus on the “original intent” of the Constitution’s framers, writes David Coale.In its 2023-24 term, the U.S. Supreme Court heard 62 cases. That’s a tiny fraction of the thousands of matters resolved by federal courts during that time. This limited bandwidth makes it even more remarkable that, for the third term out of the last four, the Supreme Court reversed the U.S.
The Supreme Court clearly sees a persistent and significant problem with how the 5th Circuit treats the key threshold issue of standing. The end of this term offers an opportunity for the 5th Circuit to align its approach to standing with the Supreme Court’s. In fact, a largely unnoticed 5th Circuit opinion from June illustrates exactly how to do that, if litigants and judges will follow its lead.The two cases from this term weren’t close calls. In FDA vs.
“The Fifth Circuit was wrong to do so,” wrote Justice Amy Coney Barrett for a 6-3 majority. “The plaintiffs, without any concrete link between their injuries and the defendants’ conduct, ask us to conduct a review of the years-long communications between dozens of federal officials, across different agencies, with different social-media platforms, about different topics.
The 5th Circuit has mapped its own exit from this judicial cul-de-sac, if it will only follow the path. In June, the same month its Hippocratic Medicine and Murthy decision was reversed, the 5th Circuit decided, in which Texas Attorney General Ken Paxton and three individuals challenged new federal laws about gun silencers as violating the Second Amendment. A three-judge panel, in an opinion written by senior-status Judge Edith Brown Clement, held that the plaintiffs lacked standing.
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